Kennedy v. Louisiana
(2008), 128 S.Ct. 2641 – The Eighth Amendment does not permit the death penalty
for rape of a child when death was neither the result nor intended result.

In re D.B., 129 Ohio
St. 3d 104,
2011-Ohio-2671 – As applied to offenders under age 13,
R.C.
2907.02(A), proscribing non-forcible sexual relations with a
child under thirteen is unconstitutionally vague and violates
the right to equal protection. ¶24: “When an adult engages in
sexual conduct with a child under the age of thirteen, it is
clear which party is the offender and which is the victim. But
when two children under the age of 13 engage in sexual conduct
with each other, each child is both an offender and a victim,
and the distinction between those two terms breaks down.”
Choosing to prosecute one child but not the other is
discriminatory enforcement. Prosecution remains possible when
force is used or other circumstances exist.

State v. Kaufman, 187 Ohio App. 3d 50,
2010-Ohio-1536 -- ¶54-58: While the law does not impute an
authoritative relationship merely because the defendant is an
adult and the victim is a child, here the defendant’s long
standing relationship with one of the victims’ mother sufficed..
¶59-62: Same conclusion as to second victim where the sex acts
were characterized as punishment. ¶ 85-98: Evidence one victim
had been adjudicated delinquent for molesting his step-brother
was inadmissible under the rape shield law and Evid. R. 609(D).
¶113-131: Court finds no problem with the testimony of an expert
who had no direct involvement with the victims. ¶160-190:
Joinder was prejudicial and counts should have been tried
separately according to victim. In sex offense prosecutions the
common modus operandi pitch for joinder runs into the rape
shield law and Evid. R. 404. Nor were the acts inextricably
intertwined or identity of the offender disputed. The opinion
notes that the trial court did not allow a third alleged victim
to testify as to other acts evidence. The evidence was not
simple and distinct as to each victim given the risk the jury
would view the evidence in toto as corroborative, and the
inflammatory nature of the offenses charged. This case
demonstrates the difficulty of child rape appeals. Though the
court was receptive to a degree to many of the defense claims
about the weakness of the case and fairness of the trial it
reversed on only one claim, and that with a dissent. On remand a
plea bargain netted the defendant a six-year sentence in place
of five times life plus twenty years.

State v. Wells (2001), 91 Ohio St. 3d
32, 35 -- "If the evidence shows that the defendant made contact only with the
victim's buttocks, there is not sufficient evidence to prove the defendant
guilty of the crime of anal rape. As a corollary, where the evidence shows that
the defendant attempts to penetrate the victim's anus, and, for whatever reason,
fails to do so, and makes contact only with the buttocks, there is sufficient
evidence to prove the defendant guilty of the crime of attempted anal rape."
Also see State v. Lee, Franklin App. No. 03AP-436,
2004-Ohio-5540.

State v. Smith, Clark App. No.
2003-CA-23,
2004-Ohio-665 -- Sexual conduct not established where victim nodded
affirmatively when asked if the defendant stuck his hands into her pants, but
shook her head and answered negatively when asked if he made penetration. As to
a male victim, indication of some oral contact with the buttocks only was not
sufficient to establish anal intercourse or fellatio.

State v. Stricker, Franklin App. No.
03AP-746,
2004-Ohio-3557, ¶17 -- "Not the spouse" language in the definition of
rape reflects the marital privilege defense and is not an element.

State v.
Hardie, 171 Ohio App. 3d 429,
2007-Ohio-2755 -- Defendant received LWOP for forcible
kiddie rape following a guilty plea. The plea encompassed
admissions to the facts leading to the enhanced sentence. Blakely and
Foster do not apply.

State v. Astley (1987), 36 Ohio App. 3d
247 -- Penetration element established, even though for purposes of taking a
photograph fellatio had been simulated without actual contact. As to whether
penetration must be proven when rape is premised on fellatio or cunnilingus see
State v. Ferguson (1983), 5 Ohio St. 3d 160, 168 fn. 7.

State v. Shoop (1993), 87 Ohio App. 3d
462, 468-469 -- Petechial lesion on the hymen found sufficient to prove
penetration in felonious sexual penetration prosecution. To prove penetration it
is not necessary that the hymen be broken or that there be an injury to the
vagina.

State v. Carpenter (1989), 60 Ohio App. 3d
104 -- Headnote: "The presence of an intact hymen does not preclude a finding by
a jury, upon other competent evidence, that a rape has been committed." (Slight
penetration sufficient.) Also see State v. Milburn (September 16, 1980),
Franklin Co. App. No. 79AP-848, unreported (1980 Opinions 2898).

State v. Collins (1990), 66 Ohio App. 3d
438, 441-444 -- Rape conviction upheld though appears sexual conduct did not
occur until after the victim's death. Seems at odds with the notion that the
word "person" refers to a life in being. Rationale appears to be that there was
a continuing course of conduct encompassing the death of the victim. Also see
State v. Whitsell (1990), 69 Ohio App. 3d 512 involving the offense of
felonious sexual penetration and citing Collins.

State v. Love (1988), 49 Ohio App. 3d 88
-- There is no requirement that the testimony of a rape victim be corroborated.

State v. Hart (1991), 72 Ohio App. 3d 92,
96 -- In a rape prosecution it is irrelevant what was going through the victim's
mind at the time of the incident.

State v. Williams (1989), 52 Ohio App. 3d
19, 21 -- Court finds state did not have to prove a culpable mental state where
defendant was convicted of rape and GSI of a minor under age 13. (Opinion avoids
the usual discussion of what culpable mental state applies when none is
specified in the statute and is probably erroneous.)

In re Washington (1996), 75 Ohio St. 3d
390 -- Syllabus: "A child under the age of fourteen is presumed capable of
committing rape. Williams v. State
[1854], 14 Ohio 222, and Hiltabiddle v. State [1878], 35 Ohio St. 52,
overruled." Body of opinion states that Ohio is not among those states where
there is a rebuttable presumption that a child under fourteen is incapable of
committing the crime of rape. Dissent states focus should have been upon eight
year old defendant's ability to form intent.

In re M.D. (1988), 38 Ohio St. 3d 149 --
It is against public policy for a twelve year old to be prosecuted for
complicity to commit rape for "playing doctor." Such prosecution is a violation
of due process.

In re Frederick (1993), 63 Ohio Misc. 2d
229 -- The rape statute does not reach consensual intercourse between a boy who
has just turned fourteen and a girl aged twelve years, five months. Also see In re Smith (1992), 80 Ohio App. 3d 502. Compare
In re Hamrick
(September 29, 1988), Franklin Co. App. No. 87AP-1154, unreported (1988 Opinions
3599) reaching the opposite conclusion where a fifteen year old boy and an
eleven year old girl engaged in consensual sex.

State v. Smelcer (1993), 89 Ohio App. 3d
115, 124 -- "Rape of a person less than thirteen years old by means of fellatio
is a strict liability offense." Also see State v. Nicodemus (May 15,
1997), Franklin Co. App. No. 96APA10-1359, unreported (1997 Opinions 1789).

State v. Bock (1986), 28 Ohio St. 3d 108
-- Harmless error to tell the jury to disregard "not the spouse" element of rape
where because of age and gender of victim he could not lawfully have been the
defendant's spouse.

State v. Clark (1988), 43 Ohio App. 3d 104
-- Under former R.C. 2907.02, a defendant could be convicted of the rape of his
wife if a divorce action was pending. Note: Under the
current version,
conviction is possible if the offender is living separate and apart from spouse.
The extent to which Clark still applies may be problematic.

State v. Hooper (1979), 57 Ohio St. 2d 87
-- For purposes of the former felonious sexual penetration statute, a finger is
not an "object."

State v. Hill (1996), 112 Ohio App. 3d 473
-- Bill of particulars and evidence at trial indicated multiple events were
encompassed in a single count of rape, and instructions did not narrow focus of
jurors. Majority and dissent split on whether this amounted to impermissible
duplicity.

State v. Alexander (1989), 58 Ohio App. 3d
28 -- Headnote: "In a child-rape case, where the child-victim does not know that
the criminal act committed against her is wrong, the corpus delicti of
the crime remains undiscovered, and the period of limitation does not commence
to run until the wrong is discovered."

State v. Amyx (1988), 55 Ohio App. 3d 54
-- Headnote 1: "In a rape prosecution, the selection of a jury composed of eight
females and four males does not, standing alone, substantiate a claim of
ineffective assistance of counsel raised by a male defendant on the theory that
female jurors are more likely to convict than are male jurors."

State v. Yenser,
176 Ohio App. 3d 1,
2008-Ohio-1145 – Defendant was charged with anal rape of his estranged wife.
Defense was consent. Trial court improperly applied the rape shield law to keep
out testimony they had engaged in such activity in the past. The defendant‘s
past sexual activity with the victim is admissible under
R.C. 2907.02(D),
and here was relevant to the defense of consent.

State v.
Black, 172 Ohio App. 3d 716,
2007-Ohio-3133 -- Trial court granted the state‘s motion in
limine under the rape shield law to exclude evidence the victim
had previously been sexually abused. Relying on In re Michael (1997), 119 Ohio App.
3d 112 the defendant claimed this prevented him from showing the
victim, who would not be expected to be sexually knowledgeable,
had an alternative source of knowledge about sexual conduct
other than the acts attributed to the defendant. Instead the
court followed State v. Hennis,
Clark App. No. 2003 CA 21,
2005-Ohio-51 reaching the opposite conclusion where the
victim was a teenager. Affirmed. Though the victim was closer in
age to the victim in Michael, the defendant‘s admissions
warranted following Hennis. Also see
State v. Guthrie (1993), 86 Ohio
App. 3d 465.

State v. Craig, 110 Ohio St. 3d 306,
2006-Ohio-4571, ¶63-72 -- Application of Ohio's rape shield law found not to be
arbitrary and contrary to Holmes v. North Carolina, 547 U.S. ___, 126
S.Ct. 1727. The rape shield law continues to apply when the victim has been
killed.

State v.
Chaney, 169 Ohio App. 3d 246,
2006-Ohio-5288 -- The defendant had information the victim
had partially recanted a rape allegation against another
defendant. Reversed because he was denied the opportunity to ask
the victim if she had made a false accusation. Had she said no
he would have been bound by the answer and not permitted to
introduce extrinsic evidence to the contrary.
State v. Boggs (1992), 63 Ohio St.
3d 418, applied.

State v. Acre (1983), 6 Ohio St. 3d 140 --
An in camera hearing shall be conducted to determine the admissibility
under the rape shield law of testimony regarding collateral sexual acts. A side
bar conference does not satisfy this requirement.

State v. Cotton (1996), 113 Ohio App. 3d
125 -- Rape shield law required hearing in chambers on admissibility of
evidence. Bench conference was not sufficient. Evidence in question did not go
to origin of semen, pregnancy, disease, or the defendant's past sexual activity
with the victim, nor did it qualify as similar acts evidence. Concurring opinion
states material was no more than unfounded personal beliefs or unsubstantiated
accusations. Compare State v. Netherland
(1999), 132 Ohio App. 3d 252 finding waiver of right to hearing.

State v. Hart (1996), 112 Ohio App. 3d 327
-- Application of rape shield law claimed to have denied defendant his Sixth
Amendment right to confront witnesses against him and his Fourteenth Amendment
right to due process. Material in question did not fall within the listed
exceptions in the rape shield law. Court weighs probative value of the evidence,
concluding trial court did not abuse its discretion keeping sexual liaison
between the victims from the jury. For further discussion of the right to
confrontation vis a vis the rape shield law see In re Michael (1997), 119
Ohio App. 3d 112.

State v. Williams (1986), 21 Ohio St. 3d
33 -- In a rape prosecution where the alleged victim on direct denied previously
having sex with the defendant and that she did not have sex with men because she
was gay, it was a denial of the defendant's right of confrontation not to allow
testimony contradicting these assertions, notwithstanding the rape shield law
and Evid. R. 608(B). Also see State v. Williams (1984), 16 Ohio App. 3d
484 (same case); Olden v. Kentucky
(1988), 488 U.S. 227. Compare State v. Tomlinson (1986), 33 Ohio App. 3d
278, 280; State v. Leslie (1984), 14 Ohio App. 3d 343.

In re Johnson (1989), 61 Ohio App. 3d 544,
550-551 -- Defendant was entitled to introduce testimony of third party to whom
victim expressed her desire to have sexual relations with the defendant. The
rape shield law applies to sexual activity and not expression of sexual desires.
Defense was consent.

State v. Graham (1979), 58 Ohio St. 2d 350
-- Evidence of past sexual relations between the defendant and the victim was
not relevant where the defendant denied being present and consent was no a
defense.

State v. Ferguson (1983), 5 Ohio St. 3d
160, 163-165 -- Rape shield law barred cross examination of victim based on
contradictory statements on the stand in hospital reports as to date of prior
sexual activity where consent was the defense and testimony was not material to
the statutory exceptions.

State v. Gardner (1979), 59 Ohio St. 2d 14
-- Rape shield law did not deny Sixth Amendment right to confrontation where the
claim that the victim was a prostitute did not bear on her credibility or the
issue of consent. Evidence of other rape at gunpoint, one night before incident
charged, was admissible under
R.C. 2945.59 and tended to prove intent to commit
forcible rape.

State v. Smith (1986), 34 Ohio App. 3d 180
-- Where defendant denied having sexual relations with the victim and semen was
detected during hospital examination, defendant was entitled to introduce
testimony victim had intercourse with two other men during the twenty-four hours
before she was examined. Credibility of this testimony was for the jury and not
the court to determine. Also see State v. Brewster (May 1, 1990),
Franklin Co. App. No. 88AP-974, unreported (1990 Opinions 1701).

State v. Clemons (1994), 94 Ohio App. 3d
701 -- In a GSI and rape prosecution, testimony concerning the defendant's
"problem" with masturbation was not admissible under the rape shield law, as it
did not involve the origin of semen, pregnancy or disease, or of the defendant's
past sexual activity with the victim. Nor was it admissible as similar acts
evidence.

State v. Price (1992), 80 Ohio App. 3d 35,
40-41 -- Trial court erroneously allowed testimony as to defendant's sexual
relations with another stepdaughter. Held not to be admissible as an exception
under R.C. 2907.02(D) since it was not offered to prove the source of semen,
pregnancy or disease, nor was it evidence of the defendant's past sexual
activity with the victim. Was not admissible under
R.C. 2945.59 or Evid. R.
404(B) since it was not connected with acts charged, nor did it explain the
circumstances of those acts.

State v. Banks (1991), 71 Ohio App. 3d 214
-- Defendant's assertion that he had never had sex with any child opened the
door to evidence to the contrary. Compare State v. Hamilton (1991), 77
Ohio App. 3d 293 where in similar circumstances the appellate court found Evid.
R. 608(B) barred admission of extrinsic evidence of incident defendant had
denied.

State v. Ridgeway (1990), 66 Ohio App. 3d
270 -- Evidence that victim had gonorrhea and defendant did not was of such low
probative value as to be properly excluded. Court further finds issue was not
raised in a timely fashion. Instead of hearing in chambers at least three days
before trial, was raised at sidebar in mid trial without explanation why had not
been raised sooner.

State v. Boggs (1992), 63 Ohio St. 3d 418
-- Syllabus: "(1) Evid. R. 608(B) allows, in the trial court's discretion,
cross-examination on specific instances of conduct 'if clearly probative of
truthfulness or untruthfulness.' In certain instances it is within the
discretion of the trial court to permit cross-examination of a rape victim as to
prior accusations of rape. (2) ...(T)he trial judge shall conduct an in
camera hearing to ascertain whether sexual activity was involved and, as a
result, cross-examination on the accusation would be prohibited by
2907.02(D),
or whether the accusation was totally unfounded and therefore could be inquired
into pursuant to Evid. R. 608(B)."

State v. Boggs (1993), 89 Ohio App. 3d 206
-- Implementing the decision in State v. Boggs (1992), 63 Ohio St. 3d
418, courts are to follow a two stage procedure. Defense counsel may ask the
witness if she has made any false prior rape accusations. If the answer is no,
the court would have the discretion to determine whether and to what extent
counsel may proceed with cross. If the answer is yes, the court is to conduct an
in camera hearing. If it is ascertained that the false accusations involved
sexual activity, further inquiry may be barred by the rape shield law. If sexual
activity was not involved, then further cross may be allowed, but Evid. R.
608(B) would bar the introduction of extrinsic evidence. However, extrinsic
evidence may be heard at the in camera hearing.

State v. Guthrie (1993), 86 Ohio App. 3d
465 -- The rape shield law, considered in conjunction with Evid. R. 608, does
not provide for impeachment of the reputation for truth telling by evidence of a
victim's past sexual conduct which tends to show that she may have the ability
to fabricate a new but fictitious story, or to establish an alternate source of
knowledge of sexual function, or for possibly establishing a motive for bringing
charges of sexual abuse. Question whether this interpretation is sufficiently
broad as to deny right to confrontation.

State v. Eskridge (1988), 38 Ohio St. 3d
56 -- Paragraph one of the syllabus: "The force and violence necessary to commit
the crime of rape depends upon the age, size and strength of the parties and
their relation to each other. With the filial obligation of obedience to a
parent, the same degree of force and violence may not be required upon a person
of tender years, as would be required were the parties more nearly equal in age,
size and strength. (State v. Labus
[1921], 102 Ohio St. 26, 38-39.)" Also see: State v. Stokes (1991), 72
Ohio App. 3d 735 -- Threats of harm to child's mother if rape was reported found
sufficient to establish force element where victim was under thirteen. State
v. Netherland (1999), 132 Ohio App. 3d 252, 264-265 -- Rule applies to
foster parents.

State v. Schaim (1992), 65 Ohio St. 3d 51
-- (1) Paragraph one of the syllabus: "A defendant purposely compels another to
submit to sexual conduct by force or threat of force if the defendant uses
physical force against that person, or creates the belief that physical force
will be used if the victim does not submit. A threat of force can be inferred
from the circumstances surrounding sexual conduct, but a pattern of incest will
not substitute for the element of force where the state introduces no evidence
that an adult victim believed that the defendant might use physical force
against her. (State v. Eskridge
[1988], 38 Ohio St. 3d 56..., distinguished.)" (2) Sex offense charges involving
three different victims should have been severed. Evidence would not have been
admissible as similar acts evidence.

State v. Fowler (1985), 27 Ohio App. 3d
148, 154 -- "Force need not be overt and physically brutal, but can be subtle
and psychological. As long as it can be shown that the rape victim's will was
overcome by fear or duress, the forcible element of rape can be established. State v. Martin (1946), 77 Ohio App. 553;
State v. Wolfenberger
(1958), 106 Ohio App. 553."

State v. Dye (1998), 82 Ohio St. 3d 323 --
Syllabus: "A person in a position of authority over a child under thirteen may
be convicted of rape of that child with force pursuant to
R.C. 2907.02(A)(1)(b)
and (B) without evidence of express threat of harm or evidence of significant
physical restraint."

State v. Payton (1997), 119 Ohio App. 3d
694 -- On the first night he stayed with old friends, defendant got drunk and
molested their daughter. Because he was not a parent or stepparent, and did not
have a close relationship with the child, he did not occupy a position of
authority over the victim. Though the acts described could support a finding of
force with respect to a person in a position of authority, they did not as to
defendant.

State v. Banks (1997), 117 Ohio App. 3d
592, 595 -- Force established by a threat of harm if the victim told of sexual
misconduct, and where the victim had in the past seen the defendant hit her
mother.

State v. Ortiz, 185 Ohio App. 3d 733,
2010-Ohio-38 – Charged with rape, defendant contended that post-Wrestlemania
sex was consensual. PW claimed it was not. At a bench trial the judge found the
defendant guilty of sexual battery. Rape requires proof of purpose on the part
of the offender. It is possible to prove an offender acted knowingly though not
purposely. Furthermore, force is not required to prove coercion, which is the
basis of sexual battery. The defendant’s low IQ and the past history of the
couple made this a reasonable view of the evidence. See State v. Wilkins
(1980), 64 Ohio St. 2d 382, 386.

State v. Nagel, 188 Ohio App. 3d 348,
2010-Ohio-3062, ¶46 – Counsel was not ineffective for failing to object to
when the victim testified she was beaten with a belt and had encyclopedias
“smashed” in her face. Disciplinary measured helped demonstrate stepfather was a
person in loco parentis. Such disciplinary practices were also relevant to proof
of the force element of rape.

In re Moore, Franklin App. No.
04AP-581,
2004-Ohio-6357 -- The purpose of arousal or gratification element of
gross sexual imposition may be inferred from the circumstances. Direct testimony
is not required.

State v. Sears, 119 Ohio Misc. 2d 80,
2002-Ohio-4225 -- The amended version of
R.C. 2907.03, applicable to school
employees, may not be applied to previously lawful activity occurring before its
effective date.

State v. Noggle (1993), 67 Ohio St. 3d 31
-- A high school teacher and coach is not a "person in loco parentis" for
purposes of the sexual battery statute.

State v. Dunlap, 129 Ohio St. 3d 461,
2011-Ohio-4111 –
R.C. 2907.05(A)(4) sets forth the elements of gross sexual imposition when
the victim is under the age of 13. It establishes strict liability as to the
offender’s knowledge of the victim’s age. However, the contact between the
victim and the defendant must be purposeful.

State v. Drayer, Franklin App. No.
03AP-1033,
2004-Ohio-5061 -- Force element of gross sexual imposition was not
proven. Touching alone did not amount to constraint. Nor may force be inferred
from the mere fact the defendant was an adult. There must be some evidence the
adult is perceived as an authority figure. Here he was a near stranger. Sexual
imposition was proven, but court does not address whether it is a
lesser-included offense. But see State v. Drayer, 159 Ohio App. 3d 189,
2004-Ohio-6120 where the court granted the prosecutor's application for
reconsideration and affirmed the conviction. While not abandoning the above
reasoning, the court found the defendant's conduct following the touching could
be considered and it did establish constraint.

State v. Economo (1996), 76 Ohio St. 3d 56
-- Syllabus: "The corroborating evidence necessary to satisfy
R.C. 2907.06(B)
need not be independently sufficient to convict the accused, and it need not go
to every essential element of the crime charged. Slight circumstances or
evidence which tends to support the victim's testimony is sufficient." Physician
was prosecuted for GSI. Medical records establishing opportunity, and sister's
testimony victim was fearful before entering examining room, were sufficient
corroboration. Also see Avon Lake v. Pinson (1997), 119 Ohio App. 3d 567.

State v. Mundy (1994), 99 Ohio App. 3d 275
-- (1) At 287: GSI is not a strict liability offense. The culpable mental state
is that the offender acted "for the specific purpose or intention of sexually
arousing or gratifying either himself or the victim." Reasoning in State v.
Astley (1987), 36 Ohio App. 3d 247 faulted at pp. 294-295. (2) At pp.
286-295: The GSI statute is not unconstitutionally vague on its face, but is
vague as applied to the defendant because of the court's erroneous instructions
on culpable mental state. (3) At pp. 297-299: No abuse of discretion found in
refusal to excuse for cause jurors who indicated they had been victims of abuse.
Compare State v. Zerla (March 17, 1992), Franklin Co. App. No. 91AP-562,
unreported, where juror had recently be a victim of rape.

State v. Baker (1976), 50 Ohio App. 2d 68
-- Since feet were not an erogenous zone of the victim, GSI not established.

State v. Wilkins (1999), 135 Ohio App. 3d
26 -- Testimony concerning a 1985 rape was improperly admitted at trial for a
rape committed in 1997. Identity was not at issue in the latter case, nor was
the earlier incident a part of the immediate background of the crime charged,
permitting admission to show scheme, plan or system.

State v. Burgess, 162 Ohio App. 3d 291,
2005-Ohio-3747, ¶16-24 -- State was allowed to offer testimony that the rape
victim had been a virgin following the state's request for a hearing on
admissibility of testimony concerning other sexual activity. Though the matter
was discussed off the record, passing reference from the bench was sufficient to
establish the hearing had been held. Testimony was relevant since the victim and
the defendant both tested as having gonorrhea. Concurring judge believes no
hearing was required as the lack of prior sexual activity involves neither
sexual contact or sexual conduct. ¶25-28: Statements to emergency room nurse
were properly admitted as the victim would have perceived the nurse's questions
as being related to diagnosis and treatment, which she in fact received for her
injuries.

State v. Thompson (1981), 66 Ohio St. 2d
496 -- Other acts evidence is admissible only when relevant to a disputed
factual issue falling within one of the enumerated categories. Thus, evidence of
other acts of fondling was improperly admitted when identity was not an issue
and only question was whether act charged fell before victim's 13th birthday.

State v. Strobel (1988), 51 Ohio App. 3d
31 -- After the defendant denied he would touch a family member in a sexual
manner, state called stepdaughter and niece who described incidents 13 and 26
years in the past. (1) Defendant's denial on cross did not open the door for
impeachment in this manner. (2) Incidents were too remote in time to be
admissible as other acts evidence. Also see State v. Henderson (1991), 76
Ohio App. 3d 290.

State v. Smith (1992), 84 Ohio App. 3d 647
-- Evidence concerning another incident of child sexual abuse was improperly
admitted as it did not meet one of the purposes enumerated in Evid. R. 404(B) or
R.C. 2945.59.

State v. DePina (1984), 21 Ohio App. 3d 91
-- Use of (only slightly similar) pretexts to get victim alone, leading to rape,
not rendered too remote in time by five year interim.

State v. Davis (1989), 64 Ohio App. 3d 334
-- In a rape trial, evidence concerning prior sexual contact between the
defendant and his daughter was properly admitted as other acts evidence, but
testimony concerning his drinking and temperament was not. Also see State v.
Fenton (1990), 68 Ohio App. 3d 412, 419-420.

State v. Curry (1975), 43 Ohio St. 2d 66
-- Court improperly admitted evidence of an unrelated incident of sexual
misconduct. Admissibility is limited to matters enumerated in the statute and
only where such evidence relates to a disputed issue.

State v. Lewis (1990), 66 Ohio App. 3d 37
-- Evidence of another anal rape occurring four years in the past was improperly
admitted.

State v. Gardner (1979), 59 Ohio St. 2d 14
-- Evidence of other rape at gunpoint, one night before incident charged, was
admissible under R.C. 2945.59 and tended to prove intent to commit forcible
rape.

State v. Eubank (1979), 60 Ohio St. 2d 183
-- After victim's testimony was shaken, state was erroneously allowed to present
evidence of sexual activities involving the defendant and others. Identity was
not an issue, nor was mistake or accident. The other acts were not inextricably
related to the act charged so as to be a part of the same scheme, plan or
system. Error harmless since case was tried to the bench.

State v. Kelly (1993), 89 Ohio App. 3d 320
-- In a rape prosecution, testimony concerning prior acts of domestic violence
was not admissible under Evid. R. 404(B), but was admissible to show rape
victim's state of mind, explaining why she may have acquiesced to a degree to
conduct of estranged husband.

State v. Stowers (1998), 81 Ohio St. 3d
260, 261 -- "An expert witness's testimony that the behavior of an alleged child
victim of sexual abuse is consistent with behavior observed in sexually abused
children is admissible under the Ohio Rules of Evidence." See dissent.

State v. Boston (1989), 46 Ohio St. 3d 108
-- Syllabus: "An expert may not testify as to the expert's opinion of the
veracity of the statements of a child declarant." Also see State v. Hamilton
(1991), 77 Ohio App. 3d 293; State v. Dever (1992), 64 Ohio St. 3d 401.

State v. Price (1992), 80 Ohio App. 3d 35,
44 -- Testimony of expert on child sexual abuse was inadmissible where it was
merely offered to bolster the credibility of the victim and her brother and did
not assist the trier of fact to understand the evidence or to determine a fact
in issue. Also see State v. Eben (1992), 81 Ohio App. 3d 341; State v.
Burrell (1993), 89 Ohio App. 3d 737.

State v. Gersin (1996), 76 Ohio St. 3d 491
-- Syllabus: "A defendant in a child sexual abuse case may present testimony as
to the proper protocol for interviewing child victims regarding their abuse."
State v. Boston
(1989), 46 Ohio St. 3d 108 distinguished on the basis that such testimony goes
to interview technique and is not addressed to the child's veracity. For a case
where interview techniques warranted sustaining a defense motion in limine, see
State v. Johnson (1996), 83 Ohio Misc. 2d 26.

State v. Jones (1996), 114 Ohio App. 3d
306, 316-320 -- Counsel's failure to object to expert's testimony he believed
child sex offense victim was truthful amounted to ineffective assistance of
counsel. Measure of prejudice is not whether there was enough evidence otherwise
to support the verdict. Instead "the essential inquiry is the capacity of the
improper testimony to influence the jury's collective mind."

State v. Minkner (1994), 93 Ohio App. 3d
127, 132 -- "Essentially, Minkner wished to make the jury aware of the physical
appearance of his penis, apparently in an effort to show that Tia Davis's
statement concerning a surgical scar or mark was an embellishment of a story
having no basis in fact. Considerations of propriety precluded Minkner from
directly exhibiting his penis to the jury. Under these circumstances, we
conclude that his request to designate an impartial person to conduct a visual
examination and testify concerning the findings of that examination was a
reasonable request." Reversed event though the prosecutor claimed the defendant
or his wife could have testified. Compare State v. Thompson (1998), 127
Ohio App. 3d 511, 521 where the rape victim testified only that she had bit the
defendant's penis, and three months had elapsed by the time the request for an
examination was made.

State v. Whitman (1984), 16 Ohio App. 3d
246 -- Headnote 1: "To properly evaluate the admission of expert testimony
evidence relating to 'rape trauma syndrome,' it must be subjected to the
following tests: Whether or not the evidence (1) is relevant and material, (2)
is within the view of the average layman, (3) has acceptable scientific
reliability, and (4) has probative value that outweighs its prejudicial impact."

State v. Martens (1993), 90 Ohio App. 3d
338 -- Testimony of expert that rape victim suffered from posttraumatic stress
disorder was relevant as, in the face of a consent defense, her demeanor was
relevant and important to corroborate her claim that she was raped. Testimony
that PTSD was only within the general knowledge of the public to a certain
degree was sufficient to establish testimony as beyond the ken of the jury.
While the testimony came close to being an impermissible effort to bolster the
credibility of the victim, it was sufficiently limited to explaining the
victim's reactions after the incident.

State v. Jones (1992), 83 Ohio App. 3d
723, 727-732 -- Court did not abuse its discretion in excluding defense evidence
that victim did not suffer from rape trauma syndrome. Whatever marginal
relevancy the testimony might have had was outweighed by potential for the jury
being confused.

State v. Zeh (1987), 31 Ohio St. 3d 99 --
Paragraph two of the syllabus: "When the mental condition of the
victim-potential witness is a contested, essential element of the crime charged,
the defense may move the court that the state be barred from utilizing evidence
of such mental condition obtained in a clinical interview of the witness prior
to trial, unless such witness voluntarily agrees to a court-appointed,
independent examination with the results being made available to both sides."
Compare In re Johnson
(1989), 61 Ohio App. 3d 544, 548-549 where the state did not utilize evidence of
the mental state of the rape victim.

State v. Ramirez (1994), 98 Ohio App. 3d
388 -- No abuse of discretion shown in refusal to allow defense to have victim
evaluated where was no indication relevant evidence would result other than as
might have gone to credibility. Nor did the court abuse its discretion in
refusing to have the victims evaluated before sentencing.

State v. Hill (1989), 59 Ohio App. 3d 31
-- Headnote 1: "In a prosecution for rape, the defendant's motion for
blood-grouping tests pursuant to
R.C. 2317.47 should be granted where the victim
testified that she conceived a child as a result of the rape and that she had no
sexual relations with any man except the defendant."

State v. Smith (1992), 84 Ohio App. 3d 647
-- Testimony of an expert witness concerning behavior traits of pedophiles was
improperly admitted as a part of the state's case in chief. The effect of the
testimony was to show the defendant acted in accordance with an undesirable
character trait.

State v. Roughton (1999), 132 Ohio App. 3d
268 -- In a case replete with instances of prosecutorial misconduct, sole basis
for reversal is failure to provide potentially exculpatory evidence in the form
of slides showing nucleated cells. Even though trial court had excluded all DNA
evidence from trial, material might have proven exculpatory.

State v. Arnold, 126 Ohio St. 3d 290,
2010-Ohio-2742 -- Syllabus: “(1) Statements made to interviewers at
child-advocacy centers that serve primarily a forensic or investigative purpose
are testimonial and are inadmissible pursuant to the Confrontation Clause. (2)
Statements made to interviewers at child-advocacy centers that are made for
medical diagnosis and treatment are nontestimonial and are admissible without
offending the Confrontation Clause. Compare State v. Lukacs, 188 Ohio
App. 3d 597,
2010-Ohio-2364, decided two weeks before Arnold.

State v. Puckett, 191 Ohio App. 3d 747,
2010-Ohio-6597 – Grandfather received life without parole for digital
contact with his three-year old granddaughter. Two counts dismissed as the
confession related to a single incident. Court finds corpus delicti was
established, based on “the fact of information” that the child’s seven year old
brother said something to their mother which led the mother to take the child to
a hospital where she was examined for sexual abuse. Also, the defendant told his
son he wouldn’t have done it if it weren’t for the resemblance of the child to
his late wife.

In re Orick, 182
Ohio App. 3d 333,
2009-Ohio-2097 – Defense should have been allowed to ask victim of alleged
rape how he might have known she was at the location where the incident occurred
since it went to credibility. Defense also was entitled to inquire concerning
victim‘s efforts to defend herself. While proof of resistance is not required,
inquiry was relevant to consent.

State v.
Bell, 176 Ohio App. 3d 378,
2008-Ohio-2578 – (1) Exclusion of testimony that the alleged
victim may have run away because she stole drugs, rather than
because she had been molested, was (harmless) error. (2)
Testimony of expert on the behaviors of sexual abuse victims was
properly admitted. (3) Inexactitude as to the date and time of
events is not prejudicial when the defendant testifies
concerning the time of the events recounted by the victim and
denies anything improper occurred. Lack of specificity did not
impose a material detriment to the preparation of the defense.
(4) Cookie cutter counts in the indictment did not violate due
process where they were differentiated by a bill of particulars
and were differentiated in the state‘s closing argument. Compare
Valentine v. Konteh (6th Cir. 2005),
395 F.3d 626.

Disciplinary Counsel v.
Kellogg-Martin, 124 Ohio St. 3d 415,
2010-Ohio-282 – In a rape prosecution where the victim’s age
at the time of the offense was crucial to the penalty,
prosecutor elected to withhold information she was 13, not 12.
No violations found. (1) The disciplinary rules do not give rise
to a duty to disclose evidence favorable to the defense broader
than Criminal Rule 16. (2) Applying United States v. Ruiz
(2002), 536 U.S. 622, 633, material impeachment evidence need
not be disclosed prior to entering into a plea bargain. In the
case leading to the ethical complaint, the defendant pled to a
lesser offense.

State v. Stahl,
111 Ohio St. 3d 186,
2006-Ohio-5482 -- Ohio adopts the "objective witness test" for evaluation of
Crawford claims. Syllabus: "(1) For Confrontation Clause purposes, a testimonial
statement includes one made 'under circumstances which would lead an objective
witness reasonably to believe that the statement would be available for use at a
later trial.' Crawford v. Washington (2004), 541
U.S. 36, 52...followed.) (2) In determining whether a statement is testimonial
for Confrontation Clause purposes, courts should focus on the expectation of the
declarant at the time of making the statement; the intent of the questioner is
relevant only if it could affect a reasonable declarant's expectations." The
majority concludes statements by the victim of an oral rape to a sexual assault
nurse examiner were for diagnosis and treatment, notwithstanding indication
efforts were primarily directed towards evidence gathering. Three dissenters
concur in adoption of the test but conclude the statements to the nurse were
testimonial in nature.

State v.
Warren, 168 Ohio App. 3d 288,
2006-Ohio-4104, ¶20 -- "However we are constrained to agree
that the victim's testimony that appellant inserted his penis
inside her vagina 'eight, nine times' and that he inserted his
finger into her vagina 'a good 11 or 12 times' is not sufficient
to support appellant's convictions of additional charges of rape
and gross sexual imposition. '[W]e cannot accept the numerical
estimate which is unconnected to individual, distinguishable
incidents.' State v. Hemphill,
Cuyahoga App. No. 85431,
2005-Ohio-3726, ¶88. Valentine v.
Konteh (C.A.6, 2005), 395 F.3d 626."

State v. Kovac, 150 Ohio App. 3d 676,
2002-Ohio-6784, ¶31-48 -- Mother testified she had no reason to disbelieve her
daughter's claim she had been raped. Reversed as plain error. Door was not
opened by defense counsel's inquiry regarding daughter's recent history of
lying, and thus was not invited error.

State v. Willard (2001), 144 Ohio App. 3d
767 -- Reversal for prosecutorial misconduct where prosecutor: (1) argued
without any basis that those trained to investigate sexual abuse believed the
complainant, (2) pointed to the defendant and told the jury this is what a man
who rapes his daughter looks like, (3) belittled the defendant for permitting
his attorney to cross-examine his daughter, and (4) misstated the testimony of
the alleged victim's physician. Not all of the misconduct had been objected to.

State v. Presley, Franklin App. No.
02AP-1354,
2003-Ohio-6069 -- (1) Diagram prepared by victim while being
questioned by a police officer was inadmissible hearsay. (2) No abuse of
discretion found in allowing thirteen year old to clutch a teddy bear during
cross-examination. (3) The prejudicial effect of testimony concerning victim's
post-rape psychological problems substantially outweighed probative value
regarding guilt or innocence.

State v. McConnell, Montgomery App. No.
19993,
2004-Ohio-4263 -- Foundation requirements of
R.C. 2945.481(E) were not
met where child victim said only that she was afraid to see her father because
she hadn't seen him in a long time. For the witness to be allowed to testify in
a different room it had to be established that she would be unable to
communicate about the alleged violation because of extreme fear or that there
would be a substantial likelihood she would suffer serious emotional trauma.

State v. Sheppard, 164 Ohio App. 372,
2005-Ohio-6065 -- Child rape victim's testimony probably didn't cover the
elements, but her statement to a "licensed clinical counsellor" did. The opinion
states one of the objectives was to determine the nature and extent of sexual
abuse allegations. Stretching Crawford the court concludes the child's
statements were nontestimonial, and were made for purposes of diagnosis and
treatment. Hung jury the first time the case was tried. LWOP the second time.
Compare State v. Woods, Cuyahoga App. No. 82789,
2004-Ohio-2700, ¶9-17.

State v. Kinney (1987), 35 Ohio App. 3d 84
-- When the victim's competency as a witness is clearly called into question,
the court must inquire into his or her capacity to receive just impressions of
the facts and to relate them truly.

State v. Brown (1988), 48 Ohio App. 3d 286
-- Headnote: "The rights to confrontation and due process of a defendant charged
with gross sexual imposition are not violated by his forced absence from an
in camera
competency examination of the child victim-witness where no substantive
testimony was given by that prospective witness." (Counsel was present.) Also
see Kentucky v. Stincer (1987), 482 U.S. 730.

State v. Self (1990), 56 Ohio St. 3d 73 --
Paragraph one of the syllabus: "The use, in accord with
R.C. 2907.41(A) and (B),
of a child sexual abuse victim's videotaped deposition at trial in place of live
testimony does not violate a defendant's right of confrontation guaranteed by
the Sixth Amendment to the United States Constitution and Section 10, Article I
of the Ohio Constitution. (Maryland v. Craig [1990], 497 U.S. ___, 110 S.
Ct. 3157, 111 L. Ed. 2d 666, applied and followed; Coy v. Iowa [1988],
487 U.S. 1012, and State v. Eastham [1988], 39 Ohio St. 3d 307, 530 N.E.
2d 409, distinguished." Compare State v. Butts (June 29, 1989), Franklin
Co. App. No. 88AP-764, unreported (1989 Opinions 2366). Also see State v.
Sibert
(1994), 98 Ohio App. 3d 412, 420-423.

State v. Eastham (1988), 39 Ohio St. 3d
307 -- Procedure whereby child rape victim was allowed to testify (at a bench
trial) in a side room in the presence of the judge, counsel and the court
reporter, while the defendant remained in the courtroom watching on a TV monitor
and able to communicate by telephone with defense counsel, was a denial of
confrontation. Also see Coy v. Iowa
(1988), 487 U.S. 1012; State v. Bean (1990), 62 Ohio App. 3d 881.

State v. Madden (1984), 15 Ohio App. 3d
130 -- No abuse of discretion found in prosecutor having been allowed use of
leading questions in direct examination of eight year old victim, previously
found competent to testify. For qualification of child witness see State v.
Workman (1984), 14 Ohio App. 3d 385.

State v. Black (1993), 87 Ohio App. 3d.
724 -- (1) For purposes Evidence Rule 807, a witness is not "unavailable"
because they are not competent to testify. Child victim must be found competent
as a witness for statements to third parties to be admissible. (2) Trial court
properly concluded that the requirement of independent proof of the act charged
was not satisfied by testimony of the examining physician, which was
inconclusive as to whether injuries were the result of sexual abuse or could
have been caused by other means.

State v. Gingell (1982), 7 Ohio App. 3d
364 -- Averments of the exact time and place of an offense are not essential to
an indictment, where the precise time or date is not an essential element of the
offense charged and where the failure to provide specific averments does not
affect the defendant's due process rights. Also see State v. Madden
(1984), 15 Ohio App. 3d 130, 131; Tesca v. State (1923), 108 Ohio St. 287
(on or about language OK); State v. Carey (1958), 107 Ohio App. 149
(Sunday in January and four successive Sundays OK); State v. Hill (1989),
59 Ohio App. 3d 31.

State v. Kinney (1987), 35 Ohio App. 3d 84
-- Headnote 2" "Although precise dates are generally not essential elements of
offenses, where (a) the entire prosecution in a rape case focuses on one
specific date, (b) defendant presents an alibi defense for that specific date,
(c) another incident is mentioned during trial, and (d) the trial court
originally instructs the jury that it must find that the rape occurred 'on' that
date, it is plain error for the trial court to permit the jury to find that the
rape occurred 'on or about' that date."

State v. Said (1994), 71 Ohio St. 3d 473
-- (1) Syllabus: "A hearing to determine the competency of a potential child
witness pursuant to Evid. R. 601 must be recorded pursuant to Crim. R. 22." (2)
For the statement of a child victim to be admissible under Evid. R. 807, the
court must first determine whether the child was competent as a witness at the
time the statement was made.

State v. Daniels (1982), 1 Ohio St. 3d 69,
77 -- See Krupansky dissent for language that sexual preference of a witness is
generally irrelevant.

State v. Thompson (1987), 33 Ohio St. 3d
1, 11 -- Court does not reverse where the trial court failed to instruct that
jury must unanimously agree as to the type of rape defendant committed where
single count in the indictment both vaginal and anal rape. Not clear from the
opinion whether counsel requested such an instruction. Also see State v.
Ambrosia (1990), 67 Ohio App. 3d 552 (approximate dates in three counts each
involved more than one offense). For the proposition that the jury must
unanimously agree upon a single theory of culpability see United States v.
Gipson (5th Cir. 1977), 553 F. 2d 453, 457-458 citing In re Winship,
1970, 397 U.S. 358.

State v. Sibert (1994), 98 Ohio App. 3d
412, 431 -- "A criminal defendant is not entitled to a jury instruction on gross
sexual imposition as a lesser included offense of rape where the defendant has
denied participation in the alleged offense, and the jury, considering such
defense, could not reasonably disbelieve the victim's testimony as to 'sexual
conduct,' and at the same time, consistently and reasonably believe the
testimony under a theory of mere 'sexual contact.'"

State v. Patton (1991), 74 Ohio App. 3d
224 -- Defendant charged with rape not entitled to instruction on sexual battery
where he put on no evidence and there was not basis for jury finding consent or
knowing versus purposeful conduct.

In re Pennington, 150 Ohio App. 3d 205,
2002-Ohio-6381 -- Disorderly conduct is a lesser-included offense to gross
sexual imposition involving a victim under the age of thirteen.

State v. Hairston (1997), 121 Ohio App. 3d
750 -- Corruption of a minor is not a lesser included offense to rape, but it is
an offense of lesser degree. Corruption of a minor is neither a lesser included
or offense of lesser degree to GSI as it is an F-3 while GSI (in this case) is
an F-4.

State v. Bryan (1998), 127 Ohio App. 3d
573 -- Sexual battery as defined by
R.C. 2907.03(A)(2) is not a lesser included
offense to rape as defined by
R.C. 2907.02(A)(1)(a) because the lesser offense
requires additional elements of proof.

State v. Fletchinger (1977), 51 Ohio App.
2d 73 - Corruption of a minor is not a lesser included offense of rape.

State v. Moore (1978), 62 Ohio App. 2d 86
-- Headnote: "The crimes of gross sexual imposition (R.C. 2907.05[A][3]) and
contributing to the delinquency of a minor (R.C. 2151.41) are separate and
distinct crimes and the latter is not a lesser offense included within the
former."

In re T.L., 186 Ohio App. 3d 42,
2010-Ohio-402, ¶44-46 – Rape and GSI are allied offenses of similar import.
Based on prosecutor’s agreement GSI was a lesser included offense, they merge
for sentencing.

State v. Cabrales,
118 Ohio St. 3d 54,
2008-Ohio-1625 -- Paragraph one of the syllabus: "In determining whether
offenses are allied offenses of similar import under
R.C. 2941.25(A),
courts are required to compare the elements of offenses in the abstract without
considering the evidence in the case, but are not required to find an exact
alignment of the elements. Instead, if, in comparing the elements of the
offenses in the abstract, the offenses are so similar that the commission of one
offense will necessarily result in commission of the other, then the offenses
are allied offenses of similar import. (State v. Rance
(1999), 85 Ohio St. 3d 632, 710 N.E. 2d 699, clarified.) As applied to the drug
offenses at issue, possession and trafficking based on sale or offer to sell do
not merge, because one may offer to sell without possession and one may possess
without an intent to sell. Possession and trafficking premised on preparation
for shipment, shipment, transport, delivery etc. do merge, since any of these
alternatives requires possession. But trafficking premised on shipment, etc. and
trafficking premised on sale or offer to sale do not merge, as the latter does
not require actual possession.

State v. Moore, 161 Ohio App. 3d 778,
2005-Ohio-3311, ¶83-91 -- Complicity to rape counts do not merge for the complicitor when they do not merge for the principal offender.

In re Rashid, 163 Ohio App. 3d 515,
2005-Ohio-4851 -- ¶11-28 discuss
Rance
and other cases, concluding State v. Logan (1979), 60 Ohio St. 2d 126
again is the primary authority for merger of complicity to rape and kidnapping.
Defendant loses under either standard. Under Rance it is impossible to
kidnap without raping. Under Logan the restraint and beating as a part of
the game of "arrest" were not merely incidental, and subjected the victim to a
substantial risk of harm separate and apart form the rape. Game involved teenage
boys treating the arrestee like Abner Louima.

State v. Nicholas (1993), 66 Ohio St. 3d
431, 434-435 -- Related offenses of oral and vaginal rape and felonious sexual
penetration are separate crimes, committed with a separate animus and do not
merge for purposes of sentencing.

State v. Jones (1997), 78 Ohio St. 3d 12
-- Where individual acts were committed within a short period of time, but
separated by intervening events, counts premised on fellatio did not merge, nor
did counts premised on vaginal intercourse and attempted vaginal intercourse.

State v. Donald (1979), 57 Ohio St. 2d 73
-- Rape and kidnapping may be allied offenses of similar import.

State v. Logan (1979), 60 Ohio St. 2d 126
-- Syllabus: "In establishing whether kidnapping and another offense of the same
or similar kind are committed with a separate animus as to each pursuant to
R.C.
2941.25(B), this court adopts the following guidelines: (a) Where the restraint
or movement of the victim is merely incidental to a separate underlying crime,
there exists no separate animus sufficient to sustain separate convictions;
however, where the restrain is prolonged, the confinement is secretive, or the
movement is substantial so as to demonstrate a significance independent of the
other offense, there exists a separate animus as to each offense sufficient to
support separate convictions; (b) Where the asportation or restraint of the
victim subjects the victim to a substantial increase in risk of harm separate
and apart from that involved in the underlying crime, there exists a separate
animus as to each offense sufficient to support convictions." Also see State
v. Price (1979), 60 Ohio St. 2d 136.

State v. Moore (1983), 13 Ohio App. 3d 226
-- Rape and kidnapping do not merge if the movement of the victim is substantial
or the restraint of liberty is of a significant period of time so as to
demonstrate a significant independence of the rape offense. Also see State v.
Malone (1984), 15 Ohio App. 3d 123; State v. Peterman (September 25,
1979), Franklin Co. App. No. 79AP-218, unreported (1979 Opinions 2792; State
v. Booker (December 22, 1981), Franklin Co. App. No. 81AP-258, unreported
(1981 Opinions 4221).

State v. Ware (1980), 63 Ohio St. 2d 84 --
Rape and kidnapping were committed separately where there was an act of
asportation by deception significantly independent of the asportation incidental
to the rape itself.

State v. DePina (1984), 21 Ohio App. 3d 91
-- Rape and kidnapping do not merge where victim was lured from bar by
deception, then forcibly removed to secluded area where rape occurred.

State v. Henry (1987), 37 Ohio App. 3d 3,
9 -- Rape and kidnapping are committed with a separate animus when restraint is
for two and a half hours, confinement in car was secretive, and movement was
substantial, all contributing to a substantial increase in the risk of harm to
the victim. Also see State v. Brown (1984), 12 Ohio St. 3d 147; State
v. Mitchell (1989), 60 Ohio App. 3d 106.

State v. Moralevitz (1980), 70 Ohio App.
2d 20 -- Gross sexual imposition and kidnapping are not allied offenses of
similar import when the victim is under thirteen and force or threat of force is
not an element. Different conclusion might follow where force is an element.

State v. Stewart (1980), 70 Ohio App. 2d
147 -- Felonious assault and rape do not merge when the assaults upon the victim
were not merely incidental to the rapes and were committed with a separate
animus.

State ex rel. Carnail v. McCormick,
126 Ohio St. 3d 124,
2010-Ohio-2671 – Mandamus lies to compel trial court judge to conduct a new
sentencing hearing to make postrelease control a part of a life-rape sentence.

State v. Johnson, 116 Ohio St. 3d 541,
2008-Ohio-69 –
R.C. 2929.13(F) does not require that mandatory life sentences for rape of a
child be served consecutively.

State v. Warren, 118 Ohio St. 3d
200,
2008-Ohio-2011 – Rapes were committed when the defendant was
fifteen. Seventeen years later he was convicted and received
life sentences. Statutes that went into effect after the crimes
were committed mandated he be prosecuted as an adult after
reaching age 21. No due process violation found.

State
v. Hatten, 186 Ohio App. 3d 256,
2010-Ohio-499 – Defendant was acquitted of forcible rape,
but convicted of rape of a substantially impaired person.
¶22-37: A half pitcher, three cans of beer, and seven shots gave
the jury a reasonable basis for finding a 120 pound woman was
substantially impaired. But the state was required to further
prove the defendant was aware of this impairment. Though he had
training as a liquor enforcement agent this was not shown to
give rise to particular expertise. Nor did the victim’s conduct
otherwise suggest impairment. Conviction reversed. ¶38-43: As to
related kidnapping charge, promise to “cuddle” only didn’t
amount to deception, but blocking exit with an arm was enough
for force.

State v. Wilson, 192 Ohio App. 3d 189,
2011-Ohio-155 – Weight of the evidence claim fails in a
voyeurism case because the defense failed to provide an
innocent, nonsexual, explanation for the offender’s conduct. In
fact such explanation had been provided but the appellate court
did not find it entirely credible.

State v. Brooks, 186 Ohio App. 3d 694,
2009-Ohio-3286 – A three year old child’s vague and
conflicting statement about what may have happened when he was
bathed by his mother’s boyfriend led to GSI and kidnapping
convictions. The state sought to vindicate statements to the
custodial paternal grandmother as being in furtherance of
medical diagnosis and treatment or as excited utterances., but
in view of the passage of time and the manner of questioning
they were neither. Convictions also reversed as not being
supported by legally sufficient evidence.

State v. Leopard, 194 Ohio App. 3d 500,
2011-Ohio-3864 – Defendant got consecutive 4-year sentences
for consensual sexual activity which would have been legal if
the victims were 16 instead of 15. Defendant is unsuccessful
arguing sentence statutory factors guiding felony sentencing
were not followed. Dissenting judge finds an abuse of discretion
and would run the terms concurrently.

Carmell v. Texas (2000), 529 U.S. 513, 120
S.Ct. 1620 -- Texas law changed, eliminating corroboration requirement with
regard to some sex offenses. Defendant was convicted of offenses committed
before the change based on uncorroborated testimony. Ex post facto violation
found. Laws altering the rules of evidence, allowing less or different testimony
than required at the time of the offense, may not be applied retroactively.

State v.
Adrian, 168 Ohio App. 3d 300 -- Defendant solicited
another to provide a drugged eight year old for him to molest,
but cops were waiting in the van where the child was thought to
be. Attempted rape conviction was supported by the evidence as
the defendant's payment and discussions with the woman who set
him up constitutes a substantial step in a course of conduct
planned to result in a rape. But related "attempted complicity
to commit kidnapping" conviction fails because no effort had
been made to obtain an eight year old.

State v. White (1999), 135 Ohio App. 3d
481 -- First offender got 70 years for rape convictions arising from a single
incident. Affirmed. Lack of remorse manifest in statement he would "serve his
sentence as a sacrifice to all those falsely accused of crimes" didn't help.

State v. Knight (2000), 140 Ohio App. 3d
797 -- Police officer was convicted of bribery for soliciting sex acts in the
course of his duties. (1) Passenger was offered a ride home after driver was
arrested, but told to get out of the cruiser when she refused sexual favors.
Soliciting improper sexual relations may be construed as a valuable thing. Duty
element satisfied since officers could drive people home if necessary, and he
had begun to do so. (2) Citation in lieu of arrest on an outstanding warrant in
exchange for intercourse supports conviction for both bribery and sexual
battery.

State v. Robinson (1990), 67 Ohio App. 3d
743 -- Attempted rape conviction affirmed where defendant's position between the
victims's legs (though fully clothed) at the time he was interrupted by a passer
by was concluded to be a "substantial step" towards the act of rape. Also see
State v. Woods
(1976), 48 Ohio St. 2d 127.

In re Anderson (1996), 116 Ohio App. 3d
441 -- 16 year old girl's GSI conviction upheld. Charges arose from playing spin
the bottle with children under 13.

State v. Stepp (1997), 117 Ohio App. 3d
561 -- Mother didn't prevent her boyfriend's continued entry at bedtime to her
14 year old daughter's room, encouraged birth control, told daughter to do what
ever it took to keep boyfriend in the household, and threatened consequences if
daughter became pregnant. Aiding and abetting felonious sexual penetration
upheld.

State v. Heidelburg (1986), 30 Ohio App.
3d 265 -- In order for GSI to be a third degree felony, verdict form does not
need to specify the age of the victim, though the jury must necessarily have
concluded the victim was under thirteen. [Poorly drafted opinion purporting to
overrule State v. Prater (1983), 13 Ohio App. 3d 98.]

State v. Overholt (1991), 77 Ohio App. 3d
111 -- Defendant convicted of various sex offenses could not be ordered to pay
as restitution the expenses of counselling for his victims until they reached
age eighteen.

State v. Fenton (1990), 68 Ohio App. 3d
412, 437-439 -- Life sentence for forcible rape of a child under the age of
thirteen is not cruel and unusual punishment. Also see State v. Gladding
(1990), 66 Ohio App. 3d 502.

United States v. Williams
(2008), 128 S.Ct. 1830 – Provision enacted to replace the one found
unconstitutional in Ashcroft v. Free Speech Coalition
(2002), 525 U.S. 234, survives First Amendment challenge as it targets speech
introducing child-pornography into the distribution network and not underlying
material, which if virtual, is constitutionally protected. Void for vagueness
challenge rejected as well.

State v. Graves, 184
Ohio App. 3d 39,
2009-Ohio-974 – Trial court dismissed three counts of
illegal use of a minor in nudity oriented material because they
failed to allege lewd exhibition or a graphic focus on the
genitals, in accordance with the narrowing interpretation of the
statute set forth in State v. Young (1988), 37 Ohio St.
3d 249. Trial court properly found the counts failed to state a
punishable offense. Furthermore, the state was properly denied
leave to amend the indictment as the further allegation might
reflect matters not considered by the grand jury.

State v.
Hurst, 181 Ohio App. 3d 454,
2009-Ohio-983 – Injured employee was placed on light duty at
the office. In five days 14,000 pictures landed on a new
computer‘s temporary Internet cache folder, leading to kiddie
porn charges. The defendant testified he had meager computer
skills and described crawling under a table to unplug the
computer when screens full of images rapidly downloaded. As to
the sufficiency of proof on the mens rea element of recklessness
in relation to possession, at ¶65-99, the court does not hold
the state to merely proving presence of prohibited images in the
cache. Defendant loses because of the search terms he used and
file names associated with his computer activity – "amazing
preteens, elite preteens, family incest tree," etc.

State v.
Brady, 119 Ohio St. 3d 375,
2008-Ohio-4493 – Attorney was appointed as an expert witness
in a kiddie porn prosecution. The FBI raided his home and seized
his laptop and the digital image exhibits was preparing for use
at trial. Trial court sustained a motion to dismiss. Court of
Appeals affirmed. Reversed. Court could consider matters beyond
the face of the indictment in ruling on motion to dismiss
premised on claim federal child pornography statutes deprived
the defendant of his right to expert assistance, since the
motion could be decided without deciding the general issue.
Expert could do his work at the prosecutor‘s office.

Ashcroft v. Free Speech Coalition (2002),
122 S.Ct. 1389 -- The ban on virtual child pornography in the Child Pornography
Prevention Act of 1996 is overly broad and unconstitutional under the First
Amendment.

State v.
Tooley, 114 Ohio St. 3d 366,
2007-Ohio-3698 -- Syllabus: "(1) The permissive inference of
R.C. 2907.322(B)(3) does not render
R.C. 2907.322(A)(5) unconstitutionally overbroad by equating
virtual child pornography, which is protected expression under
the First Amendment, with pornography that involves real
children, which is not protected. (Ashcroft
v. Free Speech Coalition (2002), 535 U.S. 234...followed)
(2) Application of the culpable mental state of recklessness to
R.C. 2907.323(A)(3), which prohibits possession of certain
images of minors in a state of nudity, does not render the
statute unconstitutionally overbroad. (Osborne
v. Ohio (1990), 495 U.S. 103...followed.) (3) The state
must prove all elements beyond a reasonable doubt, including
that a real child is depicted, to support a conviction for
possession of child pornography under either R.C.
2907.322 or
2907.323." The undercurrents in the decision are what may
constitute unprotected "morphed" kiddie porn and the value of
expert testimony.

State v. Huffman, 165 Ohio App. 3d 518,
2006-Ohio-1106 --
Ashcroft struck down a federal ban on virtual child
pornography but allows states to ban pornography depicting real children, which
is the basis for the Ohio statute banning depiction of sexual activity by a
"minor." The Ohio statute is not overbroad. Compare
State v. Tooley, 11th Dist. No. 2004-P-0064,
2005-Ohio-6709. Nor is
R.C.
2907.322(A)(1) unconstitutionally vague. Whether or not the subjects depicted
are real or virtual is a jury question not requiring expert testimony.
Videotaping is photographing.

State v. Steele, Butler App. No.
CA2003-11-276,
2005-Ohio-943 -- Whether images are virtual or real is an issue
of fact to be determined by the jury. Expert testimony is not required.

State v. Jenkins, Hamilton App. No.
C-040111,
2004-Ohio-7131 -- Court declines to extend
Lawrence v. Texas
(2003), 123 S.Ct. 2472 "to the commercial enterprise of selling obscene
materials to the public." While a person may have the right to watch cowboy
hat-wearing Max Hardcore in the privacy of his own home, there is no correlative
right to sell such obscene materials. The court fields the complaint that the
jury was not allowed to see two other videos shown the grand jury by describing
their contents, concluding they were not "compellingly similar" measured by
"raunchy" and "disturbing" content. The trial judge properly responded to the
prosecutor's suggestion obscenity should be measured from the perspective of an
average Kroger customer, and his emotional closing argument that the jury set,
rather than determined, community standards. Engaging in its independent review
for obscenity, the court finds the video goes beyond recreational sex to sexual
defilement.

State v. Dalton, 153 Ohio App. 3d 286,
2003-Ohio-3813 -- Post-sentencing motion to withdraw guilty plea should have
been granted to correct manifest injustice. Defendant, while on judicial
release, was charged with two counts of pandering obscenity involving a minor.
Counsel didn't realize both counts were based on fictional events in his
journal, and advised him to plead guilty to one count. Because a constitutional
distinction is drawn between real and fictional depictions of children, counsel
rendered ineffective assistance. Since it is unlikely a guilty plea would have
been entered had he been properly advised, motion to withdraw should have been
granted.

State v. Maxwell, 95 Ohio St. 3d 254,
2002-Ohio-2121 -- Ohio resident was convicted of pandering obscenity involving a
minor premised on R.C. 2907.321(A)(6), which proscribes: "No person, with
knowledge of the character of the material or performance involved, shall do any
of the following...Bring or cause to be brought into this state any obscene
material that has a minor as one of its participants or portrayed observers. (1)
Though knowledge of the character of the material must be proven, overall strict
liability applies. (2) Material was received in Ohio via AOL servers in
Virginia. Majority finds application of the statute is appropriate even though
it predates the Internet. Dissent would not apply statute in circumstances
unforeseen at the time it was enacted, noting users may have no knowledge as to
the route Internet communications travel.

State v. Cook, 149 Ohio App. 3d 422,
2002-Ohio-4812 -- (1) At ¶3-15: Visiting brother-in-law went looking for porn on
family computer and found kiddie-porn. He made copies to disk and took them to
the police. In furtherance of obtaining a warrant he was asked to bring in a
piece of mail addressed to the defendant. Suppression not required. As to making
copies, he had not yet made contact with the police, and thus, was not acting as
their agent. Providing a piece of mail at police request was of no consequence
in determining the validity of the warrant. For a search of the premises, the
magistrate only had to determine whether criminal activity was being conducted.
Defendant's person was not searched. (2) "Mirror image" made of defendant's hard
drive provided exhibits used at trial, and was prepared using EnCase software.
No abuse of discretion in admission of testimony. Claims raised went to weight,
not admissibility.

State v.
Kerrigan, 168 Ohio App. 3d 455,
2006-Ohio-4279 -- ¶22: Interpreting State v. Young (1988), 37 Ohio St. 3d 249 and
Osborne v. Ohio (1990), 495 U.S.
103: "Arguably the United States Supreme Court's construction of
R.C. 2907.323(A)(3) in Young...is
merely dictum and therefore not binding on us. But we find that
understanding to be persuasive. As we understand the holding of
the Ohio Supreme Court in Young, it
is the character of the material or performance, not the purpose
of the person possessing or viewing it, that determines whether
it involves a lewd exhibition or a graphic focus on the
genitals."

State v. Walker (1999), 134 Ohio App. 3d
89 -- Defendant videotaped his girlfriend in the nude, marking the tape
"X-rated." Later he used the same tape to record her infant son discovering his
genitals. Aunt and uncle found tape and gave it to the police. Trial court
concluded the tape was not intended to be lewd, but found boyfriend guilty of
use of a minor in nudity-oriented materials. Reversed, as the statute had
previously been construed to require proof of lewd purpose to survive
constitutional challenge.

State v. Daniels, Hamilton App. No.
C-020321,
2003-Ohio-1545, ¶ 12-15 -- To constitute a felony violation of the
disseminating matter harmful to juveniles statute, the materials must be depict
or describe hard core sexual conduct meeting the definition of "sexual conduct."
Graphic depiction of underage nudity does not fall within the controlling
statutory definition.

State v. Dute, Hamilton App. No. C-020709,
2003-Ohio-2774 -- Defendant sold porno tapes involving herself and others over
the Internet. (1) ¶ 3-12. Defendant was entitled to admission of a comparable
tape, which had been found in another prosecution not to be obscene, in order to
demonstrate community standards. (2) ¶ 14-25: Mistrial should have been declared
when it was learned seven jurors had been exposed to incorrect media coverage of
a prior prosecution that had been the subject of a defense motion in limine.
"Where the jury becomes aware of 'highly prejudicial' evidence of the
defendant's past criminal behavior through news media coverage, it is per se
prejudicial to the defendant." See Marshall v. United States (1959), 360
U.S. 310. (3) ¶ 36-38: For purposes of sentencing the court improperly found
this to be organized criminal activity based on the number or participants.

State v. Gann, 154 Ohio App. 3d 170,
2003-Ohio-4000 -- The illegal use of a minor in nudity oriented material statute
[R.C. 2907.03(A)(3)] is not unconstitutionally vague or overbroad. Opinion goes
on to evaluate the sufficiency of the evidence in support of various lesser sex
offenses, often involving Internet communications.

State ex rel. Flynt v. Dinkelacker, 156
Ohio App. 3d 595,
2004-Ohio-1695 -- An indictment cannot be conditionally
dismissed. Plea agreement in 1999 substituted Hustler News and Gifts for the
defendant named in the indictment. The company pleaded guilty and remaining
charges against individuals were dismissed. In court agreement that prosecution
could be revived if there were future sales of obscene materials was
unenforceable. Writ of prohibition granted.

State v. Maisch,
173 Ohio App. 3d 724,
2007-Ohio-6230, ¶30-37 – Bill of information in an importuning prosecution
failed to allege in the conjunctive that the defendant was four or more years
older than the identity assumed by a police office in an online sting operation.
This rendered the information defective, and a conviction based on an indictment
that fails to state an offense is void for lack of subject matter jurisdiction.
However, because the court lacked jurisdiction jeopardy did not attach and the
state is free to reindict.

Alliance
v. Carbone, 181 Ohio App. 3d 500,
2009-Ohio-1197 – Cop looking to make arrests under an
ordinance making it disorderly conduct to loiter near a toilet
building responded to the defendant flashing his brake lights,
followed him into a park restroom, arranged a liaison at the
defendant‘s place of business, then placed him under arrest.
Officer was mindful the park had a four star rating on
"cruisingforsex.com." The ordinance simply states "No person
shall loiter in or near toilet buildings." This is
unconstitutionally vague both on its face and as applied to the
defendant. It permits the police to make an arrest before any
crime has occurred or is about to occur. The ordinance is also
overly broad.

State v. Turner, 156 Ohio App. 3d 177,
2004-Ohio-464 -- Instead of meeting a 14-year old year old boy wearing a
purple shirt, the defendant met a 45-year old cop, who was at least honest about
the color of his shirt. (1)
R.C. 2907.04(A) and (B)(3) concerning unlawful
sexual conduct with a minor, and
2907.07(E), now (D), concerning
telecommunications solicitation, survive claims of vagueness, negation of the
defenses of impossibility, mistake of fact and abandonment, and infringement of
freedom of speech. (2) Pleading no contest precludes consideration of dubious
entrapment claim. (3) Intervention in lieu of conviction was properly denied
absent a showing that "sexual addiction" was driven by drugs or alcohol. (4) A
computer can be used as a criminal tool.

State v.
Andrews, 171 Ohio App. 3d 332,
2007-Ohio-2013 -- After discussing authority for the
proposition that an attempt to commit an attempt is not a crime,
the court concluded importuning is not an attempt offense. The
word attempt does not appear in the statute. Importuning does
not involve an attempt to engage in the sexual activity. The
offense is premised on the asking. Here the offense was an
attempt because the defendant mistakenly believed the person he
chatted with was underage, though in fact it was an adult
civilian working though "Perverted Justice." The court also
rejects a First Amendment attack on attempted importuning as a
cognizable offense.

State v. Cunningham, 156 Ohio App. 3d
714,
2004-Ohio-1935 -- Court declines extending the outrageous police conduct
defense to charges arising from an officer posing as a 14-year old girl on the
Internet. ¶31 (quoting from the trial court opinion): "The photograph may have
been sufficient in the Defendant's mind to warrant driving an Infinity Q-45 five
hours from Tennessee, but it is not so overwhelming to launch a thousand ships.
The Helen of Troy Defense is not applicable here." Actually the defendant did
not make it to Miami County as he was arrested enroute after stopping to meet
another cop in Greene County. Nor does the importuning by soliciting sexual
relations on the Internet statute violate the Commerce Clause. Also see State
v. Bolden, Montgomery App. No. 19943,
2004-Ohio-2315.

State v.
Lowe, 112 Ohio St. 3d 507,
2007-Ohio-606 -- Step parent may be prosecuted for sexual
battery of his stepdaughter. Syllabus: "R.C.
2903.03(A)(5) is constitutional as applied to consensual
sexual intercourse between a stepparent and an adult stepchild,
since it bears a rational relationship to the state's legitimate
interest in protecting the family." Lawrence v. Texas distinguished because it involved
unrelated adults. Divorce would end the stepparent relationship.

State v. Freeman, 155 Ohio App. 3d 492,
2003-Ohio-6730, ¶ 18: "...(A)ppellant did not have a constitutionally protected
right to engage in incest with his daughter. Neither the United States
Constitution nor the Ohio Constitution guarantees appellant a fundamental right
to engage in private acts of consensual sexual intercourse with his daughter..."
Lawrence v. Texas (2003), 123 S. Ct. 2472, distinguished. Nor did the court
err in denying funds to retain an incest expert.

State v. Snyder, 155 Ohio App. 3d 453,
2003-Ohio-6399 -- Over the Internet, "Man that heals," a deputy coroner,
arranged to meet "Sarah 420 Hottie," a Lima cop, at the Kewpee Restaurant.
Division (E)(2) of R.C. 2907.07, the importuning statute, held not to be
unconstitutionally vague, overbroad, or in violation of the First Amendment. The
provision addresses communications with undercover officers.

State v. Schaefer, 155 Ohio App. 3d 448,
2003-Ohio-6538 -- It is no defense to the offense of attempted unlawful sexual
activity with a minor that the 14-year old girl the defendant thought he was
meeting proved to be an officer. Nor is importuning a lesser included offense
forming the basis for a double jeopardy claim.

Cleveland v Maistros (2001), 145 Ohio App.
3d 346 -- R.C. 2907.07(B), the same sex portion of the importuning statute, held
to violate equal protection, applying the rational relationship standard. Also
see State v. Thompson 95 Ohio St. 3d 264,
2002-Ohio-2124 -- Syllabus:
"R.C. 2907.07(B) is facially invalid under the Fourteenth Amendment to the
United States Constitution and Section 2, Article I of the Ohio Constitution."
The Supreme Court finds the provision is a content-based restriction on speech
and applies the strict scrutiny test.

State v. Conklin, Darke App. No. 1556,
2002-Ohio-2156 -- Wildlife Division investigator responding to complaints of
illicit sexual activity in a wildlife area struck up a conversation with a
mushroom hunter. "Delicate dance of courtship" leading towards understanding
that talk of sex would not be offensive was insufficient to establish
importuning.

State v. Norris, 147 Ohio App. 3d 224,
2002-Ohio-1033 -- A Cincinnati ordinance required licensing of all massage
practitioners, but was enforced only against those advertising such services in
a sexually suggestive manner in the "adult" section of a weekly newspaper. City
admitted selective enforcement, but maintained it was proper. Equal protection
violation found. Defendants who provided massage to police officers did so in
the nude, but violated no other statutes or ordinances.

State v. Henry, 151 Ohio App. 3d 128 --
Public indecency charge was the result of a surveillance camera focused on the
public area of a men's room. Citing cases where there was deemed to be limited
or no reasonable expectation of privacy in a stall, held that the same applies
to a public area. Placement of the camera did not require a warrant. Conviction
doesn't require proof another person actually observed or was offended by the
conduct involved. Likelihood is enough. Concurring judge is offended by practice
of using cameras in this manner.

Columbus v. Breer, 152 Ohio App. 3d 701,
2003-Ohio-2479 -- Urination in a public place (next to a house, near cops,
during a campus area party) may constitute public indecency. Cleveland v.
Pugh (1996), 110 Ohio App. 3d 472 distinguished on the basis that case
involved an urgent need linked to a medical condition.

State v. Walker (1999), 134 Ohio App. 3d
89 -- Defendant videotaped his girlfriend in the nude, marking the tape
"X-rated." Later he used the same tape to record her infant son discovering his
genitals. Aunt and uncle found tape and gave it to the police. Trial court
concluded the tape was not intended to be lewd, but found boyfriend guilty of
use of a minor in nudity-oriented materials. Reversed, as the statute had
previously been construed to require proof of lewd purpose to survive
constitutional challenge.

State v. Maxson (1978), 54 Ohio St. 2d 190
-- Syllabus: "An individual who has passed his or her fifteenth birthday but has
not reached his or her sixteenth birthday is 'over fifteen years of age'
pursuant to R.C. 2907.04 (corruption of a minor)."

State v. Fawn (1983), 12 Ohio App. 3d 25
-- Headnote: "R.C. 2907.04, corruption of a minor, is constitutional on equal
protection and due process grounds, in that it creates a reasonable
classification in providing different penalties for different adults committing
the same offense and in requiring a lesser degree of proof under this section
that under R.C. 2907.06, sexual imposition."

State v. Johnson (1987), 42 Ohio App. 3d
81 -- Public indecency conviction upheld where defendant was found engaged in a
sex act in an unlocked pit toilet in a highway rest area.

Miller v. Barberton Municipal Court (6th
Cir. 1991), 935 F. 2d 775 -- Public indecency conviction of defendant who swam
nude in the illuminated pool of a private club did not violate right to privacy
and was not a violation of due process.

State v. Frost (1994), 92 Ohio App. 3d 106
-- Man masturbating in parked car while watching bikini-clad woman at beach in a
state park was not guilty of voyeurism.

State v. Cooper (1994), 92 Ohio App. 3d
108 -- Importuning not proven where defendant asked eight year old girl to pull
down her clothes, and saying he had "something to show her." While
reprehensible, this did not amount to a solicitation to engage in "sexual
activity" as that term is defined by
R.C. 2907.01(C).

State v. Laney (1991), 61 Ohio Misc. 2d
688 -- Because the defendant's indecent suggestions were not construed as
"fighting words" the court finds him not guilty of importuning. Because of the
position of his zipper and hands while he was talking, the court finds him
guilty of public indecency. Also see State v. Perrin (1991), 62 Ohio
Misc. 2d 51.

State v. Pressley (1992), 81 Ohio App. 3d
721 -- Straightforward solicitation of another person of the same sex found not
to be protected by the First Amendment, applying the fighting words doctrine.
See dissent.

State v. Ward (1993), 85 Ohio App. 3d 378
-- Postal investigators sent raunchier kiddy porn photos than the defendant
requested. Pandering obscenity conviction reversed as one photo was not obscene
and the other was improperly admitted as it had not been requested by the
defendant.

State v. Gleason (1996), 110 Ohio App. 3d
240 -- (1) Ex post facto violation found in sentencing defendant on
disseminating matter harmful to juveniles as a F-3, when at the time the offense
occurred it was classified as a F-4. (2) Since the verdict did not set forth a
finding whether the material was obscene or harmful, defendant was convicted of
the least degree of the offense, being a first degree misdemeanor. (3) Expert
testimony was not necessary to establish community standard for obscenity.

State v. Stewart (1996), 111 Ohio App. 3d
525, 534-536 -- R.C. 2907.05(A)(4) conviction for permitting child to model or
otherwise participate in the production of sexually oriented matter was
supported by the evidence, though child did not appear in photos. Evidence was
that the child was forced to take nude photos of her mother and mother's
boyfriend, thus participating in the production of such materials.

State v. Midwest Pride IV, Inc. (1998),
131 Ohio App. 3d 1 -- While public opinion polls may be relevant in pandering
obscenity trials, poll results were properly excluded when they did not address
the content of the specific materials at issue. Title of one of two videotapes
was highly suggestive as to content. Also see State v. Williams (1991),
75 Ohio App. 3d 102.